STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Family and domestic violence clause and other matters
(AM2015/1)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 23 JUNE 2017

4 yearly review of modern awards - Family & Domestic Violence Leave Clause - reconstitution of Full Bench.

[1] On 18 May 2017 I issued a Decision to refer questions of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth).¹ Such a referral is to be in the form of a special case. On 20 June 2017 I issued a Statement 2 informing interested parties that the special case had been filed in the Federal Court.

[2] The Federal Court’s file number is VID618/2017 and the matter was the subject of a Case Management Hearing on Thursday 22 June 2017. A copy of the transcript of that hearing and orders made by the Court are available on the Commission’s website.

[3] As is apparent from the transcript, the Court has expressed ‘some serious concerns’ about the competence of the application 3 and suggested that the issue in question could be brought before the Court by a decision being made by me as to the reconstitution question and a dissatisfied party bringing an application for judicial review.4

[4] Given the views expressed by the Court and the likely delay in having the matter determined I am giving consideration to discontinuing the special case (ie the s.608 referral), subject to the Court granting leave, and determining the reconstitution issue myself. Any interested party affected by my decision may then bring an application for judicial review.

[5] I will list this matter for hearing at 1pm on Wednesday 28 June 2017 to provide any interested party with an opportunity to be heard about the issue raised in paragraph [4] above.

PRESIDENT

1 [2017] FWC 2752

2 [2017] FWC 3316

3 Transcript p2, line 37

4 Transcript p4, lines 16-40 and p8 at lines 35-37

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the parties contested the 4 yearly review of modern awards, specifically addressing the Family and Domestic Violence Leave Clause. The Commission was tasked with reconstitution of the Full Bench to hear this review. The applicants, represented by the Australian Council of Trade Unions, sought to challenge the existing provisions related to Family and Domestic Violence Leave and other aspects of the modern awards. They argued for increased protections and benefits for employees affected by family and domestic violence.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, particularly in relation to the Family and Domestic Violence Leave Clause. The applicants contended that the current provisions were insufficient and did not adequately protect employees who were victims of family and domestic violence. They sought amendments to the leave entitlements, procedural safeguards, and additional support measures. The Commission had to determine whether the existing provisions met the requirements of the Act and if any changes were necessary to better protect employees in these circumstances.

The Fair Work Commission found that the existing provisions did not adequately address the needs of employees affected by family and domestic violence. The Commission acknowledged the importance of providing adequate support and protection for such employees. It decided that the Family and Domestic Violence Leave Clause should be amended to increase the leave entitlements and to provide clearer guidance on the procedures for requesting and obtaining leave. The Commission also recognised the need for additional support measures, including access to counselling and other resources. As a result, the Commission made several recommendations for changes to the modern awards to better protect employees in these situations.

The final orders of the Commission included the reconstitution of the Full Bench to hear the 4 yearly review of modern awards. The Commission recommended amendments to the Family and Domestic Violence Leave Clause, including increased leave entitlements and clearer procedural guidance. It also recommended additional support measures to assist employees affected by family and domestic violence. The Commission's decisions were intended to provide better protections and support for employees in these circumstances, ensuring that the modern awards met the requirements of the Fair Work Act 2009.

4 yearly review of modern awards—Family and domestic violence clause and other matters

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established